7.16.2012

Ok, Republican friends: Here's a flat out open defense of the Romney campaign. You constantly demand that I give equal time to Republican agendas, because some of you think I'm an evil green Liberal. Well, here's where's my "Liberalism" (which is actually simply Constitutionality sprinkled with some common sense) actually benefits you.

You may have seen this commercial where Mitt sings America The Beautiful, played over scenes of empty factories with newspaper clippings reporting Romney shipping jobs overseas as Governor, having millions in offshore accounts, and otherwise gutting the American workforce:

It's one hell of an effective ad, and the creative minds behind it should be applauded (even if you hate them, because that shit is genius).

Romney's campaign claims that this is bullshit, because their deployment of the Obama footage is fair use. You know what? They are damned right about that.

So why is this a defense of the Romney campaign? Because their rights are being trampled by big corporate American nonsense. It's definitely irony of the highest degree that the pro-corporation, pro-capitalist candidate is being unfairly censored by a corporation for capitalist reasons. But that doesn't make it okay.

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

Notwithstanding the provisions of sections 17 U.S.C.§ 106 and 17 U.S.C.§ 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[2]

The Romney campaign was well within its rights to use Obama singing Let's Stay Together as a commentary on Obama's performance of the song. The performance by Obama does not reasonably impact the potential market for the song. Sony BMG's takedown notice is yet another instance of corporations using their weight to step on the toes of anyone and everyone they feel like swatting at.

Personally, I feel that the whole notion of "innocent until proven guilty" has flown out the window where corporations dealing with the public are concerned. Of course, Google is well within it's rights per the Terms of Use on YouTube to take down whatever the hell it wants. It's not a court of law.

But it's not right.

At this point in our development as a nation and as a people, the internet has become not just a viable medium for communication, but the de facto source of information, entertainment, companionship and communication between friends for billions of people. Of course, under current copyright law (which is broken beyond belief in the modern era see this, this, this, and if nothing else, please read this -- but nothing I linked to is written or stated by wackos, these are intelligent scholars making fantastic points), corporations who publish content need to respond to blatant copyright violations. But things have become so reactive that, when a DMCA (Digital Millennium Copyright Act) notice is filed, corporations shoot first. They don't even bother to ask questions later -- it's up to YOU to go prove to them you didn't violate copyright... Even when you own the video and music, and Jay Leno airs it on his show, then files a DMCA notice against you and effectively steals it from you.

I'm not a fan of Romney, but I am absolutely aghast at how his ad has been nuked because Sony felt like it. The irony may be delicious for those who are anti-Romney -- but the injustice is still an injustice.